IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: AMERICAN INVESTORS :

LIFE INSURANCE CO. ANNUITY : MDL DOCKET NO. 1712

MARKETING AND SALES PRACTICES :

LITIGATION :

 MEMORANDUM

McLaughlin, J. December 6, 2011

The defendants, AmerUs Group Company, AmerUs Annuity 1

Group Company, American Investors Life Insurance Company, AmerUs

Life Insurance Company, Creative Marketing International 2

Corporation, and Insurance Agency Marketing Services, Inc., move

the Court to enforce its final order and judgment against class

member Alvany E. Wilson. The defendants move to have the Court

permanently enjoin Wilson from litigating a civil action against

them that she instituted in the Circuit Court, Hillsborough

County, Florida, styled Wilson v. Albertson, et al., No. 11-7478

(the “Florida Action”). Ms. Wilson, the plaintiff, cross-moves

for relief from judgment under Rule 60(b). The Court will grant

the defendants’ motion and deny the plaintiff’s motion.

I. Background

The final order and judgment at issue in the

 AmerUs Group Company is now known as Aviva USA 1

Corporation.

 AmerUs Life Insurance Company is now known as Aviva Life 2

and Annuity Company.

Case 2:05-md-01712-MAM Document 543 Filed 12/06/11 Page 1 of 15
defendants’ motion pertains to a multidistrict litigation

proceeding involving six consolidated putative class action

lawsuits, the oldest of which had been pending before the Court

since 2004. In re Am. Investors Life Ins. Co. Annuity Mktg. &

Sales Practices Litig. (In re Am. Investors), 263 F.R.D. 226,

228-29 (E.D. Pa. 2009). In their pleadings, the plaintiffs

claimed that the defendants perpetrated a scheme to sell

investments to the class through misrepresentations and omissions

about the characteristics of the investments. They alleged that

the defendants targeted and induced the class to buy complex,

long-term deferred annuities that lacked liquidity. Id. at 230.

After years of litigation, on July 16, 2009, the

plaintiffs filed their unopposed motion for preliminary approval

of a class-wide settlement, certification of a class, and an

order directing issuance of notice to the class. They attached

to their motion the parties’ stipulation of settlement

(“stipulation of settlement” or “settlement stipulation”) and

proposed form of class notice. On July 28, 2009, the Court

issued an order preliminarily approving the settlement and the

notice. Id. at 229.

To facilitate notice of the settlement, counsel in the

action retained Rust Consulting, Inc., a settlement administrator

specializing in class action notification and settlement

administration. Id. at 232. On August 28, 2009, the settlement

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administrator disseminated 387,263 copies of the Court-approved

class notice to the last known addresses of the class members via

first-class, postage prepaid mail. The notice described the

action, the applicable terms, the class claims, and the forms of

relief available. It discussed the class members’ right to be

heard at the fairness hearing, their right to exclude themselves

from or object to the settlement, and the procedure to effectuate

an exclusion or objection. Id. It also discussed the binding

effect of the settlement for those who chose not to opt out by

October 13, 2009. Id.; see Notice at 2, 3, 15, 16, Attach. 5 to

Pls.’ Unopposed M. for Final Approval of Settlement, Class

Certif., & Award of Attys’ Fees & Costs & Incentive Payments.

Specifically, the notice explained multiple times

throughout that if a recipient of the notice did not properly

exclude him or herself, then he or she could not bring suit

against the defendants. For example, in the section entitled

“Summary of Your Legal Rights and Options in this Settlement,”

the notice explained:

[I]f you do nothing in response to this

Notice, you will give up all rights to sue

any of the Defendants in this case . . . as

well as the person(s) who sold your policy

and certain other released parties included

as “Releasees” in the Stipulation of 3

 The stipulation of settlement defines “Releasees” as: 3

[I]ndividually and collectively, the

Defendants and Other Defendants and the

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Settlement, concerning the policy or the

manner in which it was marketed or sold, or

any other legal claims that were made or

could have been made in this case, as more

fully described in the Stipulation of

Settlement.4

Notice at 2. In response to the question, “What am I giving up

to get a settlement benefit or stay in the Class?”, the notice

answered:

Unless you properly exclude yourself, you are

Defendants’ and Other Defendants’ respective

past, present, and future parent companies,

subsidiaries, affiliates, predecessors,

successors and assigns, together with each of

the Defendants’ and Other Defendants’

respective past, present, and future

officers, directors, employees,

representatives, attorneys, and agents

(including, without limitation, those acting

on behalf of Defendants and within the scope

of their agency), all Agents, including,

without limitation, IMOs and other marketing

organizations involved in any way, directly

or indirectly, in the marketing, sale, and

servicing of Company Annuities, and all of

such Releasee’s heirs, administrators,

executors, insurers, predecessors, successors

and assigns, or any of them, and including

any person or entity acting on behalf or at

the direction of any of them.

Settlement Stip. X.A.1, Attach. 1 to Pls.’ Unopposed M. for

Prelim. Approval of Settlement, Certif. of Settlement Class, &

Order Directing Issuance of Notice to the Class. This definition

was incorporated into the Court’s final order and judgment. In

re Am. Investors, 263 F.R.D. at 247.

 The notice explained that the stipulation of settlement 4

was available on the settlement informational website,

www.MDL1712settlement.com, and a copy could be obtained by

contacting the settlement administrator at the address and

toll-free telephone numbers provided in the notice.

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staying in the Class, and that means: (1)

that you can’t sue, continue to sue, or be

part of or receive any benefits in or from

any other lawsuit, arbitration,

administrative or regulatory proceeding,

order, or other legal proceeding anywhere

against the Defendants, the persons who sold

your policy, and/or certain other released

parties included as “Releasees” under the

Stipulation of Settlement, about your policy

or the manner in which it was marketed or

sold, or any other legal claims that were or

could have been made in this case against the

Defendants and/or the other Releasees; and

(2) that you give up, or release, any and all

claims against the Defendants and/or the

other Releasees – regardless of whether they

are presently known or suspected, presently

unknown or unsuspected, presently existing,

or might exist in the future – falling under

the “Released Transactions,” as defined in 5

 The stipulation of settlement defines “Released 5

Transactions” as:

(a) the design, development, marketing,

offer, solicitation, application,

underwriting, acceptance, issuance, sale

(including, without limitation, in connection

with the issuance of a Company Annuity as a

replacement for a non-Company annuity or

another Company Annuity), presentation,

illustration, projection, purchase,

operation, performance, interest crediting,

charges, administration, servicing,

retention, and/or replacement (by means of

surrender, partial surrender, loans

respecting, withdrawal and/or termination of

any annuity) of or in connection with (1) the

Contracts or (2) any annuity sold or to be

sold or offered in connection with, or

relating in any way directly or indirectly to

the sale or solicitation of, the Contracts,

or external or internal replacements of

annuities issued by the Companies, (b) the

marketing, sale, delivery, and/or performance

of any products, plans, or services in

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the Stipulation of Settlement.

Notice at 15. In response to the question, “If I don’t exclude

myself, can I sue the Defendants for these kinds of claims

later?”, the notice explained:

No. Unless you validly exclude yourself, you

give up the right to sue the Defendants, the

persons who sold your policies, and other

parties included as “Releases” . . . for the

claims and legal issues that this settlement

resolves. If you have a pending lawsuit,

speak to your lawyer in that lawsuit about

this Notice immediately. You must exclude

yourself from this Class to continue your own

lawsuit.

Notice at 18 (emphasis in original). Wilson does not dispute

that she received the Class Notice or that she did not exclude

herself from the class in October 2009. Aff. of Alvany E.

Wilson, Pl. Mot. Ex. (“Wilson Aff.”) (ECF No. 541); Pl. Mot. ¶ 1.

On November 6, 2009, the Court held a fairness hearing

on the proposed class settlement. In re Am. Investors, 263

F.R.D. at 233. Counsel for both the plaintiffs and the

defendants appeared at the fairness hearing and spoke on behalf

connection with, or relating to or allegedly

relating to, the marketing, purchase, or sale

of a Contract, and (c) any and all matters

concerning or relating to this Settlement

(including, without limitation, the award,

election, and/or implementation of any

Settlement Relief with respect to a

Contract).

Settlement Stip. X.A.2. This definition was incorporated into

the Court’s final order and judgment. In re Am. Investors, 263

F.R.D. at 247-48.

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of their clients. Id. at 234. No class members or objectors

made an appearance at the hearing. Id. 

On December 18, 2009, the Court certified the class and

approved the settlement, holding that the class and settlement

met the requirements of Rule 23 of the Federal Rules of Civil

Procedure and comported with the United States Constitution. The

settlement stipulation included a release and waiver, which the

Court expressly incorporated into its final order and judgment. 

In specific part, it read:

The Named Plaintiffs and all Class Members,

on behalf of themselves, their heirs,

assigns, executors, administrators,

predecessors, and successors, and any other

person or entity purporting to claim on their

behalf, hereby expressly and generally

release and discharge the Releasees from any

and all causes of action, . . . whether such

claims are based on federal, state, or local

law, statute, ordinance, or regulation . . .,

contract, common law, or any other source,

relating to any Company Annuities and that

were or could have been asserted against

Defendants in the Complaint . . . based on or

related to the facts alleged in the

Complaint. 

Id. at 248. The release also noted that the plaintiffs

agree that they shall not now or hereafter

institute, maintain, assert, join, or

participate in, either directly or

indirectly, . . . any action or proceeding of

any kind against the Releasees asserting

causes of action . . . that are based on or

related to the facts alleged in the

Complaint. 

Id. at 249. 

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The Court entered a permanent injunction barring class

members from filing, commencing, prosecuting, and maintaining a

lawsuit that would relitigate the causes of action, or the facts

and circumstances related to the causes of action. It also

retained jurisdiction for all matters relating to the

administration, consummation, enforcement and interpretation of

the settlement stipulation and final order and judgment. Id. at

250-51, 252.

The class is defined as: “All persons and entities that

purchased Company Annuities issued during the Class Period and

all persons and entities to which an ownership interest in such

Company Annuities was subsequently assigned or transferred, or

that otherwise held any interest as an Owner in such Company

Annuities, during the Class Period.” The class period is from

January 1, 1998, up to and including July 28, 2009, and it

consists of approximately 387,000 individuals. Id. at 230-31.

In the Florida Action, Wilson has brought claims

against her insurance agent Paula Albertson, Albertson’s advisory

company, Aviva, and several other life insurance companies. 

Wilson alleges that Albertson misled her as to the nature and

suitability of certain investments, forged her signature on

certain instruments, and fraudulently converted funds that Wilson

had entrusted to Albertson. Compl. ¶¶ 12-35, Wilson v.

Albertson, No. 11-7478 (Fla. Cir. Ct.), Def. Mot. Ex. 1 (“Fla.

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Compl.”).

The complaint in the Florida Action alleges that “in

June 2008" several of Ms. Wilson’s annuities were replaced and

the proceeds used to fund an American Investors Life Insurance

Company annuity, dated July 9, 2008. Fla. Compl. ¶¶ 27-28. 

In the Florida Action, Wilson asserts five causes of

action against Aviva based upon the sale of her annuity:

(1) common law fraud; (2) breach of fiduciary duty; (3) unjust

enrichment; (4) negligence and gross negligence and negligent

supervision; and (5) exploitation under Fla. Stat. § 415.102 et

seq. Fla. Compl. These causes of action arise from allegations

that Aviva failed to review the annuity application or recklessly

disregarded its suitability; negligently failed to require that

Albertson explain the reason for replacing the annuities; failed

to properly supervise Albertson or intercede when she made

unsuitable recommendations; and made misrepresentations of

material information regarding the nature and sale of the

annuities. Fla. Compl. ¶¶ 29, 32, 42, 51.

Although Wilson acknowledges that she received the

Class Notice and failed to exclude herself from the class, she

moves under Fed. R. Civ. P. Rule 60(b)(6) for relief from

judgment to permit her to opt out of the settlement class. 

Wilson argues that she was “constructively prevented from knowing

and exercising her right to opt out” because Albertson, in

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addition to the fraudulent behavior outlined in the complaint,

“constructively prevented” Wilson from “knowing and exercising

her right to opt out.” Pl. Mot. 4. In addition, the plaintiff

argues that during the time period where she was required to opt

out of the settlement class, she was “suffering from a serious

heart condition that affected my capacity to function in the

tasks of daily living.” Wilson Aff. ¶ 7. She argues that this

constitutes “extraordinary circumstances” justifying relief from

judgment under Rule 60(b)(6).6

II. Analysis

The All Writs Act empowers district courts to “issue

all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” 

28 U.S.C. § 1651; In re Diet Drugs Products Liab. Litig., 369

F.3d 293, 305 (3d Cir. 2004). The Anti-Injunction Act, however,

limits a district court’s authority to enjoin state court

proceedings to three exceptions: (1) when authorized by Congress,

 The defendants argue that Wilson’s motion is improperly 6

brought under this Rule because her affidavit raises only

excusable neglect, and thus her motion should instead be analyzed

as one under Rule 60(b)(1), which would be time-barred. See Fed.

R. Civ. P. 60(c)(1) (providing that motions under Rule 60(b)(1)

must be brought within one year after the entry of judgment,

while those under Rule 60(b)(6) must be brought “within a

reasonable time”). Where a party avers that circumstances beyond

her control, rather than mere negligence, resulted in her failure

to file on time, her motion may be treated as brought under

subsection (b)(6). See Pioneer Inv. Svcs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 394-95 (1993).

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(2) to aid in its jurisdiction, or (3) to protect or effectuate

its judgments. 28 U.S.C. § 2283; Diet Drugs, 369 F.3d at 305. 

The Court has authority to enjoin Wilson from

litigating the Florida Action against the defendants here in

order to aid in the Court’s jurisdiction. The Court of Appeals

for the Third Circuit has held that a federal court may enjoin

state court proceedings to protect its jurisdiction when it is

“entertaining complex litigation, especially when it involves a

substantial class of persons from multiple states, or represents

a consolidation of cases from multiple districts.” Diet Drugs,

369 F.3d at 306; see In re Prudential Ins. Co. of Am. Sales

Practices Litig. (Prudential II), 314 F.3d 99, 104-05 (3d Cir.

2002) (affirming injunction barring litigation of plaintiffs’

state law claims based on “in aid of jurisdiction” exception). 

District courts that oversee complex federal litigation “are

especially susceptible to disruption by related actions in state

fora.” Prudential II, 314 F.3d at 104. 

Here, the Court retained its jurisdiction over this

complex, multidistrict litigation “as to all matters relating to

the administration, consummation, enforcement and interpretation

of the Settlement Stipulation and of this Final Order and

Judgement.” The settlement and final order released the

defendants from pending and future actions involving claims

related to those alleged in the class complaint, such as those

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asserted by Wilson. Although permitting the Florida Action to

proceed would not necessarily vitiate the class settlement on its

own, “permitting this kind of action would open up the

possibility of a large, or even an overwhelming, number of

collateral attacks on the settlement itself,” provided the

387,000 member class. See id. at 104. 

The Court is also empowered to enjoin Wilson from

litigating the Florida action against the defendants under the

Anti-Injunction Act exception allowing district courts to protect

or effectuate their judgments. This exception, founded on the

concepts of res judicata and collateral estoppel, was designed to

permit a federal court to prevent state litigation of an issue

that it previously decided. In re Prudential Ins. Co. of Am.

Sales Practices Litig. (Prudential I), 261 F.3d 355, 364 (3d Cir.

2001) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147

(1988)). As the Court of Appeals for the Third Circuit has

noted, “It is now settled that a judgment pursuant to a class

settlement can bar later claims based on the allegations

underlying the claims in the settled class action.” Id. at 366. 

Here, Wilson’s annuities and the sales transactions

associated with them fall within the scope of the settlement

stipulation’s release and waiver. Her claims replicate those

found in the class complaint, alleging the fraudulent sale of

long-term deferred annuities that were inappropriate investments

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for her. Pursuant to the release and waiver, Wilson released the

defendants from “any and all causes of action, . . . whether such

claims are based on federal, state, or local law, statute,

ordinance, or regulation, . . . relating to any Company Annuities

and that were or could have been asserted against Defendants in

the Complaint . . . based on or related to the facts alleged in

the Complaint.” In re Am. Investors, 263 F.R.D. at 248. The

class notice advised the class of this consequence, and Wilson

does not contest that her claims are subject to the release. The

release and waiver was incorporated into the Court’s final order

and judgment, and it has claim-preclusive and issue-preclusive

effect. See Prudential I, 261 F.3d at 367.

Rule 60(b)(6) permits a district court to enter relief

from judgment “under extraordinary circumstances where, without

such relief, an extreme and unexpected hardship would occur.” 

Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993). The

party seeking relief has the burden of showing that such hardship

will result in the absence of relief. Boughner v. Sec’y of

Health, Educ. & Welfare, 572 F.2d 976, 978 (3d Cir. 1978). 

The plaintiff has not met that burden here. The

averments of her affidavit and motion demonstrate that she

received the Class Notice, which the Court identified as the best

practicable notice under the circumstances, and failed to submit

a timely request for exclusion from the settlement class. Her

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illness did not preclude her from conducting business with

Albertson’s tax preparer, including sending her “all documents

relating to the annuities” at issue in the class settlement. 

Wilson Aff. ¶ 3. The Court cannot conclude that Wilson lacked

the capacity to opt out of the settlement class. Courts that

have relieved parties from final judgments under Rule 60(b)(6)

where illness is alleged have relied upon additional factors

constituting extraordinary circumstances, such as near-total

incapacitation or incarceration and poverty resulting in default

judgment. See, e.g., City of Phila. v. Stone Int’l Res., Inc.,

No. 95-5362, at *4 (E.D. Pa. Oct. 9, 1996) (relieving party from

default judgment where she made repeated requests to delay

proceedings due to her husband’s illness and death); FDIC v.

Alker, 30 F.R.D. 527, 532 (E.D. Pa. 1962), aff’d, 316 F.2d 236

(3d Cir. 1963) (collecting cases).

In addition, the misleading conduct of Albertson or

Aviva in preventing Wilson from learning of the effect of the

judgment cannot justify relief under subsection (6) of the Rule. 

The provisions of Rule 60(b)(6) and its other subsections “are

mutually exclusive.” Pioneer Investment Svcs. Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). Allegations of

“fraud . . . , misrepresentation, or misconduct by an opposing

party” are properly brought as a motion under subsection (3)

within one year of the entry of judgment. Wilson is thus unable

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to use Rule 60(b)(6) to circumvent the filing requirements of

Rule 60(b)(3).

Nor will “extreme and unexpected hardship” result from

the Court’s refusal to reopen its judgment. Wilson may avail

herself of the claims process set forth in the class settlement,

and continue to pursue her claims against Albertson, Albertson’s

advisory firm, and the other insurance companies that are

defendants in the Florida Action. After she received the Class

Notice and failed to opt out of the settlement class, barring Ms.

Wilson from independently litigating her claims against the

defendants here is neither extreme nor unexpected. 

Wilson has not shown extraordinary circumstances

justifying relief from a final judgment under Rule 60(b)(6). Her

motion will be denied and the defendants’ motion to enforce will

be granted.

An appropriate order shall issue separately.

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